Friar v. State

• Decision Date: 24 May 1993
• Docket Number: No. CR,CR
• Citation: 313 Ark. 253,854 S.W.2d 318
• Parties: Larry FRIAR, Appellant, v. STATE of Arkansas, Appellee. 92-1346.
• Court: Arkansas Supreme Court

Page 318

854 S.W.2d 318

313 Ark. 253

Larry FRIAR, Appellant, v.STATE of Arkansas, Appellee.

No. CR 92-1346.

Supreme Court of Arkansas.

May 24, 1993.

W. Scott Davidson, Jonesboro, for appellant.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Larry Friar(Friar), was convicted of delivery of a controlled substance, cocaine, after a bench trial in Craighead County Circuit Court and sentenced to forty-five years imprisonment.His sentence was enhanced due to four previous convictions.We affirm.

Ruby "Touche" Gray (Gray) worked as a confidential informant in 1991 for the Arkansas State Police.On August 7, 1991he had a meeting with law enforcement officers at Arkansas State Police Headquarters to arrange for a drug buy from Friar.Officer Danny Smith, Jr. testified that he searched Gray for drugs, money and weapons.Finding none, Smith wired Gray with a body mike so that the officers could overhear and record any conversations the informant had with Friar.

Smith was to go with Gray on the drug buy.Officers Grigsby and Thomas did visual surveillance, and Officers Bogard and Blankenship were doing visual and audio surveillance.

Smith and Gray drove to a house in which Friar was believed to reside, and Gray went up to the door.According to the tape of the conversation and Gray's testimony, Friar came to the door.Friar asked, "What you need?," to which Gray responded, "I need an eight ball."Friar stated that, "I ain't got that much.I'm not that strong.I can probably give you six ... I will give you six for $100."Gray and Friar then agreed to meet and make the drug transaction a block up the street.

Gray returned to Smith's vehicle and told him what was about to occur.Smith then saw Gray walk about a block up the street.A red Ford Festiva pulled up beside Gray.Although Smith could not determine the identity of the car's occupant, he could see that the driver was a light-skinned, black male.The car tags on the Festiva proved that the car was owned by Friar's mother.

As Gray approached the car, the driver got out, went around to the trunk and gave Gray a brown paper bag containing six "rocks."Gray gave him $100, and Friar got back in the car and drove away.

Kim Brown, a drug chemist with the Arkansas Crime Lab examined the six "rocks" and determined that they weighed .93 grams and contained cocaine base and a small amount of benzocaine.

Friar testified that he did not sell the six "rocks" to Gray.He explained that although he did tell Gray that he would sell him the drugs, he claims that he did so only to make Gray go away from his house.Everyone knew that Gray was working as an informant, claimed Friar.To support his innocence, Friar claimed that he would never sell six "rocks" for $100, since the going rate was four for one hundred.

After hearing all of the evidence, the trial judge found Friar guilty of delivery of a controlled substance, cocaine.Since the State presented evidence of Friar's four previous convictions, the court found that Friar was an habitual criminal and sentenced him to forty-five years imprisonment.It is from that conviction that he appeals.

For his first argument on appeal, Friar claims that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to support his conviction.We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence.Williams v. State, 298 Ark. 484, 768 S.W.2d 539(1989).The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict.Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400(1987).On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it.Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58(1990).Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.Hodge v. State, 303 Ark. 375, 797 S.W.2d 432(1990);Jones v. State, 269 Ark. 119, 598 S.W.2d 748(1980).

Friar claims that the evidence was insufficient, stressing that a convicted felon, Gray, is the only one who actually identified him as the person who sold drugs.Granted, none of the officers observing the drug transaction could actually see Friar in the car well enough to identify him, but the facts leading up to the drug buy are sufficiently incriminating.

First of all, four officers saw Gray go up to what they believed was Friar's house, at which time, an audio tape was made of the two discussing the sale off premises of six "rocks" for one hundred dollars.Officer Doug Thomas testified that he had known Friar for four years and Gray since the third grade, and he could easily distinguish their voices on the tape.He indicated that he had no doubt in his mind that it was Friar's voice on the tape.

After this recorded conversation transpired, a red Festiva, licensed to Friar's mother, pulls up to the spot to which Friar had told Gray to meet.Gray claims that Friar was the driver, but none of the policemen could actually see Friar.Anyway, a drug transaction took place; Gray walked up to a red Festiva, registered to Friar's mother, with $100 and no drugs and returned to Smith with drugs and no money.

The evidence, both direct and circumstantial, is more than sufficient to convict Friar.The law makes no distinction between circumstantial and direct evidence.For circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence.Cigainero v. State, 838 S.W.2d 361(Ark.1992).

For his final argument on appeal, Friar contends that the trial court erred in considering State's Exhibit Eight, evidence of his previous four convictions, when sentencing him as an habitual offender.Although this exhibit was not abstracted, we reach the...